UNITED STATES OF AMERICA, PETITIONER V. ALEJANDRO GARCIA IBARRA
No. 90-1713
In The Supreme Court Of The United States
October Term, 1990
The Solicitor General, on behalf of the United States, petitions
for a writ of certiorari to review the judgment of the United States
Court of Appeals for the Tenth Circuit in this case.
Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Tenth Circuit
TABLE OF CONTENTS
Question Presented
Opinions below
Jurisdiction
Statute and rule involved
Statement
Reasons for granting the petition
Conclusion
OPINIONS BELOW
The opinion of the court of appeals (App., infra, 1a-18a) is
reported at 920 F.2d 702. The district court opinions (App., infra,
19a-50a) are reported at 731 F. Supp. 1037 and 725 F. Supp. 1195.
JURISDICTION
The judgment of the court of appeals was entered on December 3,
1990. A petition for rehearing was denied on February 12, 1991 (App.,
infra, 51a-52a). The jurisdiction of this Court is invoked under 28
U.S.C. 1254(1).
STATUTE AND RULE INVOLVED
1. 18 U.S.C. 3731 provides in pertinent part:
An appeal by the United States shall lie to a court of
appeals from a decision or order of a district court ()
suppressing or excluding evidence * * *.
* * * * *
The appeal in all such cases shall be taken within thirty
days after the decision, judgment or order has been rendered and
shall be diligently prosecuted.
The provisions of this section shall be liberally construed
to effectuate its purposes.
2. Federal Rule of Appellate Procedure 4(b) provides in pertinent
part:
When an appeal by the government is authorized by statute, the
notice of appeal shall be filed in the district court within 30
days after the entry of (i) the judgment or order appealed from
or (ii) a notice of appeal by any defendant. A judgment or
order is entered within the meaning of this subdivision when it
is entered in the criminal docket. STATEMENT
QUESTION PRESENTED
Whether the time to file an appeal of a suppression order runs from
the denial of a timely filed motion to reconsider that order, even
when the motion to reconsider is based on a previously conceded theory
of admissibility.
1. On March 24, 1989, Wyoming Highway Patrolman Scott Mahaffey saw
a car with California tags weaving along an interstate highway. He
stopped the car to determine whether the driver was intoxicated.
Respondent, who was driving, did not appear to be intoxicated, but
Officer Mahaffey discovered that respondent was driving with a
suspended license. The license of his passenger, Maria Linares, was
also suspended. Respondent produced a California registration
certificate for the car in the name of Charles Joseph Petrocchi,
explaining that he had purchased the car from Petrocchi two days
earlier; he could not produce a bill of sale, however, and the
ownership transfer portion of the registration certificate was not
filled in. App., infra, 29a-30a; Tr. 6, 9-12, 15, 20, 37, 99. /1/
Mahaffey gave respondent a ticket for operating a motor vehicle
with a suspended license, which required respondent to post a $220
appearance bond. After giving Mahaffey $220 for the bond, respondent
stated that he had only about $40 left with which to reach Chicago.
App., infra, 30a-31a; Tr. 18-21, 24, 71. In further discussion about
his destination, respondent gave inconsistent answers to Mahaffey's
questions and finally asserted that he was moving to Chicago, although
he appeared to be "traveling 'light'" (App., infra, 31a).
At that point, Mahaffey's suspicions were aroused, and he asked
respondent whether the car contained weapons, large amounts of money,
or controlled substances. When respondent said no, Mahaffey requested
and received permission to search the car, and respondent unlocked the
trunk. While Mahaffey searched the passenger compartment, Patrolman
Gregory Leazenby (who had arrived on the scene while Mahaffey was
questioning respondent) searched the trunk. Respondent's car and the
patrol cars were parked on a narrow shoulder at a sharp curve in the
highway where there had been several accidents; another accident had
nearly occurred during the officers' investigation. Because of his
concerns about safety, Mahaffey conducted only a brief search by the
highway. App., infra, 31a; Tr. 20-23, 88-89; 91-92, 107.
In light of all the circumstances, Mahaffey decided to impound the
car, and he arranged for a private towing service to tow it into
Laramie, a short distance away. App., infra, 31a-32a; Tr. 23-27,
93-94, 107-109. As the officers drove respondent and Linares to the
Western Union office in Laramie so that they could wire for more money
and arrange for someone to drive the car, Mahaffey reached Petrocchi's
wife on his radio, and she informed him that her husband had sold the
vehicle to respondent two weeks earlier. Mahaffey also learned that
respondent had no liability insurance for the vehicle, although
liability insurance is required for driving in Wyoming. App., infra,
32a; Tr. 27-28, 102-103.
The officers left respondent and Linares at the Western Union
office and went to the towing service lot. En route, Leazenby told
Mahaffey that he had seen "a small plastic bag or something"
protruding from underneath the spare tire in the trunk. Tr. 90. At
the towing service lot, Mahaffey started an inventory of the car's
contents by removing all the items from the trunk. Mahaffey later
testified that he believed he "was operating under a continuance of
consent." Tr. 28-29, 105-106. As Mahaffey was emptying the trunk, he
noticed a plastic bag behind the spare tire. He removed the tire and
found a large package wrapped with duct tape. Through a cut in the
tape he saw a white powdery substance, which turned out to be cocaine.
App., infra, 32a; Tr. 29-31.
Mahaffey ceased his search of the vehicle, notified the Drug
Enforcement Administration (DEA) and the Wyoming Division of Criminal
Investigation (DCI) of his discovery, and relinquished custody of the
vehicle to officials of those agencies. Leazenby returned to the
Western Union office and arrested respondent and Linares. After being
advised of his Miranda rights, respondent admitted to a DCI agent that
he was transporting cocaine to Chicago. App., infra, 32a; Tr. 30,
61, 99, 112-113.
2. Respondent was indicted by a federal grand jury for possession
of cocaine with the intent to distribute it. He filed a pretrial
motion to suppress all the evidence seized during the search as well
as his statement to the DCI agent, asserting that the stop of his
vehicle was pretextual; that his consent to the search was
involuntary and was, in any event, withdrawn prior to the second
search; and that the second search was not made pursuant to a lawful
inventory procedure. In opposition to the motion, the government
defended the legality of the stop and the impoundment, and argued that
the cocaine would inevitably have been discovered once Mahaffey
conducted his planned inventory search. App., infra, 33a, 44a-45a.
The government originally asserted that the search of the car at the
towing service lot was made pursuant to respondent's continuing
consent, but it later abandoned that argument, stating that
"additional search has failed to provide legal support for this
position, and the argument is conceded." App., infra, 21a.
After an evidentiary hearing, the district court granted
respondent's motion to suppress on November 15, 1989. App., infra,
29a-50a. The court found that the initial stop was lawful, but that
an inventory search was not reasonable, because there was insufficient
justification for taking custody of the car. /2/ App., infra, 37a,
43a, 49a.
The Assistant United States Attorney handling the case reported the
adverse decision to the Criminal Division of the Department of
Justice. At the direction of the Criminal Division, the Assistant
United States Attorney on December 13, 1989, moved for reconsideration
of the suppression order reasserting the continuing consent rationale.
On January 3, 1990, the district court denied reconsideration after
considering the argument on the merits. App., infra, 19a-28a. On
January 30, 1990, the government filed a notice of appeal. App.,
infra, 5a.
3. The court of appeals by a divided vote, dismissed the appeal on
the ground that it lacked jurisdiction to review the district court's
order. App., infra, 1a-18a. The court held that the 30-day statutory
time period in which to take an appeal ran from the date of the
initial order suppressing the evidence, not from the date of the
denial of reconsideration of that motion, because the government's
motion sought only to raise a previously conceded issue. /3/ For that
reason, the court held that the government's notice of appeal was
jurisdictionally out of time. App. infra, 11a.
The court of appeals distinguished United States v. Dieter, 429
U.S. 6 (1976), in which this Court held that the government has 30
days from the district court's denial of a timely filed motion for
reconsideration to appeal an order suppressing evidence or dismissing
an indictment. The court noted that the motion in this case, unlike
the motion in Dieter, involved an attempt to raise a previously
conceded issue. The court found that distinction significant because,
it said, a concession is generally binding on the party that makes it,
and because the court had previously indicated (in United States v.
Smith, 781 F.2d 184 (10th Cir. 1986)), its disapproval of government
efforts to raise previously conceded issues. Accordingly, the court
concluded, a motion raising such an issue has very little likelihood
of success and is more likely to prolong the litigation process,
thereby "subvert(ing), rather than further(ing), the concern for
judicial economy." App., infra, 9a. For that reason, the court found
that the government's motion attempting to withdraw a concession
should be equated with a successive motion for reconsideration, which
does not toll the appeal time. App., infra, 6a-9a.
The court of appeals also concluded that Dieter was not controlling
because the government's motion did not ask the district court to
correct an error of law in its original opinion or to consider an
argument previously made that it had not addressed, "(n)or did the
government in its motion cite contrary authority announced after it
conceded the continuing consent issue, sparing the parties and the
appellate court the burden of unnecessary appellate proceedings."
App., infra, 9a-10a. The court accordingly concluded that the
government's motion did not toll the time for taking an appeal,
because it did not "ask 'the District Court to reconsider (a) question
decided in the case' in order to effect an 'alteration of the rights
adjudicated.'" App., infra, 10a, quoting United States v. Dieter, 429
U.S. at 9.
Judge Baldock dissented. He found the court's holding to be
"plainly contrary to United States v. Dieter." App., infra, 12a. In
his view, Dieter directs that "we do not conduct a merits review of
every motion for reconsideration to insure that it meets the salutary
purposes of the rule which provides for tolling the time in which to
take an appeal." Ibid.
REASONS FOR GRANTING THE PETITION
The decision of the court of appeals creates uncertainty in an area
where it is essential to have a bright-line rule capable of easy
application. As a result, the decision, which conflicts with the
reasoning of another court of appeals, is likely to impair the
efficient administration of criminal proceedings in the federal system
and the effective management of the government's criminal litigation.
1. In civil cases, Fed. R. App. P. 4(a) specifically provides that
the time for filing a notice of appeal runs from the entry of an order
denying a motion for reconsideration. The provision dealing with
criminal appeals, Fed. R. App. P. 4(b), contains no similar language;
nevertheless, United States v. Dieter, 429 U.S. 6 (1976), requires the
same result in criminal cases. See R. Stern, Appellate Practice in
the United States 96 (1981). The decision of the court of appeals
blurs this heretofore clear jurisdictional rule, creating uncertainty
about the circumstances under which a reconsideration motion will toll
the appeal time. Because it requires a party considering whether to
file a motion for reconsideration to guess about the time within which
he must file an appeal if his motion is unsuccessful -- or simply not
promptly decided -- it will deter the filing of such motions.
The Federal Rules of Criminal Procedure should be applied to
encourage the correct resolution of cases at the district court level
without the expenditure of appellate resources. If a district court
is willing to reconsider an unwarranted initial determination on the
basis of a reconsideration motion, even one that retracts an
ill-considered concession, the system of justice benefits by getting
the case decided correctly at the trial level, and perhaps avoiding an
appeal. /4/ The system benefits even when the motion does not avoid
an appeal. Whether the court grants the reconsideration motion,
considers the new matter on the merits before denying it, or denies
the motion on the ground that the prior concession should be binding
under the circumstances, the court of appeals will be able to resolve
the case based on a fully developed legal and factual record.
2. The court of appeals took a narrow view of what constitutes a
"proper motion for reconsideration," and thus created a broad and
ill-defined exception to the principle that the time for filing a
notice of appeal does not start to run until the denial of a timely
motion for reconsideration. A "proper" motion for reconsideration,
the court held, is one that "ask(s) the court to reconsider a
(previously raised) point of law or fact that it misapprehended or
overlooked." App., infra, 8a n.3; see also id. at 11a n.7. Thus, the
court's rule would apparently bar motions for reconsideration based on
new legal or factual arguments raised for the first time in the
reconsideration motion. While a court may be free in some
circumstances to refuse to consider points previously conceded or new
arguments raised for the first time on reconsideration, it is most
unwise, we submit, to convert that discretionary decision into a
jurisdictional rule. Put another way, the appellate court's
jurisdiction should not turn on that court's assessment of whether the
appellant was entitled to raise a particular legal or factual issue in
its motion for reconsideration in the district court.
As a general matter, principles of finality should be as clear as
possible, so that litigants and the courts will have no room for doubt
about when an order is final and when the time for filing an appeal
begins to run. Murky jurisdictional lines create waste and potential
unfairness -- wasted time on appellate decisions dealing with the
jurisdictional issues, and the forfeiture of potentially meritorious
claims when the party pressing those claims guesses wrong about the
scope of the jurisdictional rule.
To confine "proper" motions for reconsideration to those simply
asking for reconsideration of particular legal and factual matters
previously raised by the party, rather than the reconsideration of the
order in question, would create a fertile ground for dispute over
matters having nothing to do with the merits of the cause. Arguments
could be expected to arise over whether a particular issue was raised
in the motion for reconsideration for the first time, rather than
simply given greater emphasis or a new characterization.
Disagreements would surely arise about whether a particular citation
or statement in the initial pleading was sufficient to make a
particular argument that was expanded upon in the motion for
reconsideration. And there would be great doubt about the extent to
which the government could present new factual allegations to the
court, which may have become relevant only because of an unexpected
legal ground adopted by the court in its initial ruling.
Moreover, when presenting something other than a square restatement
of its initial argument, the government would have to gamble that the
appellate court would regard the motion for reconsideration as
"proper." Even if the district court considered the motion on the
merits, as in this case, the government would still run the risk that
the appellate court would regard the motion as "improper" and thus
treat the appeal as untimely. The uncertainties flowing from such a
regime would create pointless distractions in a system already
straining to handle its caseload.
3. Motions for reconsideration are an essential part of the federal
government's administration of its criminal cases. The government's
criminal litigation is monitored by the Criminal Division of the
Department of Justice in Washington. Each United States Attorney's
Office is required to inform the Division immediately of all district
court decisions that are adverse to the government. United States
Attorneys' Manual paras. 2-2.110, 9-2.171 (1988). The Division
reviews each such decision to ensure that the United States Attorney
has presented every argument that is legally and factually
supportable, and that the positions advanced are consistent throughout
the federal system. It is unavoidable that the various United States
Attorney's Offices will sometimes take differing positions on a legal
issue. Through the adverse decision reporting process, the Department
learns of such inconsistencies. For instance, a United States
Attorney's Office may have advanced a position that is legally at odds
with the Department's position, perhaps by conceding a legal argument
that is being pressed in other United States Attorney's Offices, or by
failing to make appropriate arguments that are being asserted in
similar cases in other offices.
When such lapses are identified, the Division frequently suggests
to the United States Attorney that he move for reconsideration in the
district court before authorization for an appeal is sought from the
Solicitor General. It follows that the government's reconsideration
motions sometimes seek to retract inappropriate concessions, and often
bring new legal arguments to the attention of the district court.
Uncertainty about the circumstances in which a motion for
reconsideration will toll the government's appeal time would greatly
complicate the use of the motion for reconsideration as a tool for
maintaining the uniformity of criminal litigation policies. Under the
requirement established by the decision in this case, the government
would have to weigh the risk that a motion for reconsideration would
forfeit the government's appeal rights if the appellate court
considered it inappropriate. /5/
4. The decision below misinterprets this Court's decision in United
States v. Dieter, supra, which adopted the bright line rule rejected
by the court below. Dieter held that a party's appeal time runs from
the denial of a timely filed motion for reconsideration. The Criminal
Appeals Act, 18 U.S.C. 3731, provides that an appeal by the United
States from a decision or order of a district court suppressing
evidence shall be taken within 30 days after the order has been
rendered. Accord Fed. R. App. P. 4(b) (government appeal must be
filed within 30 days after the entry of the order appealed from).
Dieter is grounded on the "traditional and virtually unquestioned
practice," 429 U.S. at 8 n.3 (quoting United States v. Healy, 376 U.S.
75, 79 (1964)), that the filing of a motion to reconsider suspends the
finality of the court's judgement pending the court's determination
whether the judgment should be modified. See, e.g., Department of
Banking v. Pink, 317 U.S. 264, 266 (1942); Communist Party of Indiana
v. Whitcomb, 414 U.S. 441, 445 (1974) ("Appellees' motion for
reconsideration * * * suspended the finality of the (district court)
judgment * * * until the District Court's denial of the motion * * *
restored it."). Cf. R. Stern, E. Gressman and S. Shapiro, Supreme
Court Practice 312 (6th ed. 1986); Rule 13.4 of the Rules of this
Court. /6/
The court of appeals attempted to distinguish Dieter on the ground
that the government's reconsideration motion in this case was unlike
the motion in Dieter. /7/ The court likened a motion for
reconsideration of a previously conceded issue to a successive motion
for reconsideration, which does not affect the running of the appeal
time. /8/ That analogy is inapt. In this case the government filed
only one motion for reconsideration. Even if, as the court observed,
concessions are usually binding and their withdrawal disfavored, that
does not somehow transform a single motion to reconsider based on a
previously conceded theory into an impermissible successive attempt to
toll the government's appeal time. /9/
The court of appeal suggested that Dieter is inapplicable to the
government's motion in this case because the instant motion "did not
request that the district court correct an alleged error of law or set
aside a ruling on the grounds of mistake or inadvertance." App.,
infra, 9a. The court of appeals concluded, therefore, that the
government's motion, unlike the motion at issue in Dieter, did not ask
the district court to "reconsider (a) question decided in the case" in
order to effect an "alteration of the rights adjudicated." App.,
infra, 10a (quoting Dieter, 429 U.S. at 9). This cramped view of the
appropriate scope of a motion for reconsideration is inconsistent with
Dieter.
In Dieter, the Tenth Circuit had found Healy inapplicable because
the post-trial motion in Healy "was directed squarely at an alleged
error of law committed by the trial court," whereas in Dieter, the
Government's motion to set aside the court's ruling on the ground of
mistake or inadvertence "was an entirely different species of
pleading." 429 U.S. at 8. This Court reversed, explaining that the
considerations that had prompted the rule announced in Healy "fully
apply whether the issue presented on appeal is termed one of fact or
of law," and that nothing in Healy supported the distinction drawn by
the court of appeals. Ibid. The Dieter Court concluded: "It is true
that the Government's post-dismissal motion was not captioned a
'petition for rehearing,' but there can be no doubt that in purpose
and effect it was precisely that, asking the District Court to
'reconsider (a) question decided in the case' in order to effect an
'alternation of the rights adjudicated.'" Id. at 8-9 (quoting
Department of Banking v. Pink, 317 U.S. 264, 266 (1942)).
As Judge Baldock explained below, the clear import of Dieter is
that a court is not to consider the merits of a motion for
reconsideration in determining its jurisdictional effect. App.,
infra, 12a. The majority's response (App., infra, 7a-8a n.3) -- that
it was merely looking beyond the caption of the government's motion in
order to determine its substance, the same inquiry that this Court had
conducted in Dieter and in Pink -- misapprehends the nature of the
Court's inquiry in Dieter and Pink. The Court in those cases looked
beyond the caption of the government's motion solely to determine the
nature of the relief sought. Thus, in Pink, the motion did not toll
the time within which to petition for certiorari because it did not
challenge the final judgment of the lower court. 317 U.S. at 266.
/10/ In contrast, the government's motion in Dieter, although not
termed a motion for reconsideration, was treated like on because it
did challenge the district court's judgment -- it sought an
"alteration of the rights adjudicated." This case is like Dieter, not
Pink. The government's reconsideration motion clearly challenged the
district court's ruling -- it sought a reversal of the district
court's order suppressing evidence. Accordingly, like the motion in
Dieter, the motion in this case tolled the government's appeal time by
depriving the initial order of finality until the district court ruled
on the government's motion.
5. Finally, the court of appeals' decision is inconsistent with the
decision of the Eleventh Circuit in United States v. Ladson, 774 F.2d
436, 438-439 n.3 (1985). In Ladson, the Eleventh Circuit recognized
that Dieter teaches that a reconsideration motion asserting a new
argument tolls the time for filing an appeal. It rejected the
argument that such a motion does not ask the court to "reconsider"
anything, correctly observing that the motion seeks reconsideration of
the court's "ultimate holding on the suppression issue." 774 F.2d at
438 n.3. The court below recognized, App., infra, 10a-11a n.7, that
it analysis of the "proper" scope of a motion for reconsideration
conflicts with this approach. While the narrow holding of this case
-- involving a withdrawn concession -- does not conflict with the
holding in Ladson, the analysis in the two cases in squarely at odds.
Because of its substantial practical importance in the day-to-day
administration of criminal justice, the issue raised by that conflict
warrants resolution by this Court.
CONCLUSION
The petition for a writ of certiorari should be granted. The Court
may wish to consider summary reversal.
Respectfully submitted.
KENNETH W. STARR
Solicitor General
ROBERT S. MUELLER, III
Assistant Attorney General
WILLIAM C. BRYSON
Deputy Solicitor General
HARRIET S. SHAPIRO
Assistant to the Solicitor General
DEBORAH WATSON
Attorney
MAY 1991
/1/ "Tr." refers to the transcript of the hearing on the motion to
suppress held on Sept. 12, 1989.
/2/ The district court noted the government's concession that the
second search could not be justified under a continuing consent
theory. App., infra, 37a.
/3/ Although the court of appeals repeatedly referred to the
question at issue here as involving the "tolling" of the appeal time,
there is no suggestion that traditional tolling is involved. Instead,
the question is whether the district court's denial of the
reconsideration motion is the final appealable order that starts the
time for appeal of the decision on the merits. For convenience, we
will follow the court of appeals' practice in referring to this as a
question of tolling.
/4/ Despite the "disfavor" with which the court below views
attempts to retract concessions, the general rule is that a party's
concession on a point of law is not binding on a court of appeals.
See Government of Virgin Islands v. Josiah, 641 F.2d 1103, 1107 n.1
(3d Cir. 1981); United States v. Smith, 621 F.2d 483, 489 n.3 (2d
Cir. 1980), cert. denied, 449 U.S. 1086 (1981); United States v.
Tortorello, 533 F.2d 809, 812 (2d Cir.), cert. denied, 429 U.S. 894
(1976); United States v. Lisk, 522 F.2d 228, 231 n.8 (7th Cir. 1975),
cert. denied, 423 U.S. 1078 (1976). Since an appellate court is free
to consider whether to permit a party to retract a concession, it
follows that a district court should also be able to do so in the
first instance.
/5/ If the government did decide to file a reconsideration motion
in such circumstances and the district court did not act on the motion
within 30 days of its original decision on the merits, the government
would be required to protect its appeal rights by filing a notice of
appeal, thereby presumably removing the case from the district court's
jurisdiction without a ruling on the reconsideration motion.
/6/ In Bowman v. Loperena, 311 U.S. 262, 266 (1940), the Court held
that even an untimely petition for rehearing of a district court order
tolled the time for taking an appeal because the district court
allowed the petition and considered it on its merits. A fortiori, the
appeal time should be tolled by a timely filed motion for
reconsideration (even one asserting grounds disfavored by the court of
appeals), particularly when -- as here -- the district court has
considered it on the merits before denying it. See generally R.
Stern, Appellate Practice in the United States 96 (1981).
/7/ As Judge Baldock observed in dissent, App., infra, 12a, Dieter
itself arose out of a prior unsuccessful attempt by the Tenth Circuit
to "craft distinctions * * * on the general rule that the government
has thirty days from the district court's denial of a timely filed
motion for reconsideration to appeal an order granting suppression."
/8/ In United States v. Marsh, 700 F.2d 1322 (10th Cir. 1983), upon
which the court below relied, a motion for reconsideration of a trial
court's order denying a new trial did not toll the time period in
which to file a notice of appeal because the new trial motion was, in
essence, a motion for rehearing. The motion for reconsideration,
which served an identical function, was therefore successive. As the
court explained: "(The defendant) is not entitled to two bites, so to
speak. * * * (H)e is not entitled to two motions for rehearing, and
that is what, in substance, is sought." 700 F.2d at 1324. Accord
United States v. Rothseiden, 680 F.2d 96, 97 (11th Cir. 1982).
/9/ As Judge Baldock noted in his dissent, App., infra, 17a, "the
government's right to appeal the suppression order * * * should not be
abrogated merely because the government exercised its right to file a
motion for reconsideration on grounds obviously viewed with disfavor
by this court."
/10/ The motion at issue in Pink simply sought the court's
certification that a federal question had been presented to it for
decision. In that circumstance, the Court explained (317 U.S. at 266
(emphasis added)):
A timely petition for rehearing tolls the running of the
three-months period because it operates to suspend the finality
of the state court's judgment, pending the court's further
determination whether the judgment should be modified so as to
alter its adjudication of the rights of the parties. Here no
such alteration of the rights adjudicated was asked, and the
finality of the court's first order was never suspended.
APPENDIX